otherwise be a great violation itself of the freedom of passage on the common pathway of nations.

"In the first place, it is only a war right. The single exception of this is that a nation may lawfully send a cruiser in pursuit of a vessel which has left its port under suspicion of having committed a fraud upon its revenue laws or some other crime. This is merely the continuation of a pursuit beyond the limits of maritime jurisdiction with the examination conducted outside these bounds, which, but for the flight of the ship, might have been conducted within. In the second place, it is applicable to merchant ships alone. Vessels of war, pertaining to the neutral, are exempt from its exercise, both because they are not wont to convey goods, and because they are, as a part of the power of the State, entitled to confidence and respect. If a neutral State allowed or required its armed vessels to engage in an unlawful trade, the remedy would have to be applied to the State itself. To all this we must add that a vessel in ignorance of the public character of another, for instance, suspecting it to be a piratical ship, may without guilt require it to lie to, but the moment the mistake is discovered all proceedings must cease. In the third place, the right of search must be exerted in such a way as to attain its object, and nothing more. Any injury done to the neutral vessel or its cargo, any oppressive or insulting conduct during the search, may be good ground for a suit in the court to which the cruiser is amenable, or even for interference on the part of the neutral State to which the vessel belongs."*

Rear-Admiral Dahlgren says of the objects and extent of the Dahlgren on right of search:

"There are several purposes, all external and relating to things international-equality of independent flags-as to which no definition is agreed on, but varying, and the subject of question and dispute, ending even in war.

"Ist. Examination of papers to prove nationality only.

"2d. Examination of papers to prove cargo and lawfulness of voyage.

"3d. Examination of the ship in continuation of the same purpose, or really search.

"The French visite may mean any or all of these, even the

*Woolsey, Sec. 190.

extent of search.

Hautefeuille on

greatest; while the English 'visit' and 'search' may extend no further than the least. Wheaton pronounces them equivalent. "The Spanish Admiral Pareja described exactly the meaning of visitar, and included only the examination of papers, and that in a limited sense, except in certain cases.'

Hautefeuille makes a distinction between "visit" and "search," the difference confining the first to a simple inspection of the ship's papers, and search. showing the nationality, voyage and cargo, and says that all the

between visit

Decision in case

bok.

requirements of the belligerent arising from considerations of self-defence are satisfied when the regularity of those papers is established. He considers the actual search of a ship an act of jurisdictional authority, to be exercised only by the government to which the vessel belongs, and, as such, denied to the belligerent. No means, he says, should be used to discredit the official papers found on board, such as opening hatches and interrogating the crew.†

This doctrine is not accepted by English and American Prize Courts, they holding the right of the belligerent to carry the examination beyond the papers if any reason is discovered to doubt their correctness.

"Naturally, the first object of the visitation and search of a of the Spring neutral vessel by a belligerent cruiser is to examine the ship's documents and papers, and to ascertain her nationality, her port of departure, her destination, her lading, and the evidences of its character and ownership, so far as those particulars are determined by the papers on board. The next step is, if circumstances of a suspicious bearing are discovered, indicating her employment to be in violation of good faith and honest neutrality, to seize the vessel and cargo and submit them to adjudication before a prize court of the belligerent power which makes the arrest. This right is conceded and exercised by all maritime nations in time of war, in respect to the transportation by sea of contraband of war. . . . It will also be found that the right of search may be made effective by an examination of the lading as well as the papers of the vessel, restrained always within the limits of a fair and reasonable reserve."

Sec. 3. Manner search.

Mr. Seward, under date of August 8, 1862, wrote to Mr. Welles, Secretary of the Navy: "It is the duty of the naval

* Dahlgren, p. 100.

† Hautefeuille, Vol. III, titles XI-XII. ‡ Blatchford, Prize Cases, p. 352. The Springbok.

officers to be vigilant in searching and seizing vessels, of whatever nation, which are carrying contraband of war to the insurgents of the United States; but it is equally important that the provisions of the maritime law, in all cases, be observed and respected. I am directed by the President to ask you to give the following instructions, explicitly, to the naval officers of the United States, namely:

"First. That under no circumstances will they seize any foreign vessel within the waters of a friendly nation.

"Second. That in no case are they authorized to chase and fire at a foreign vessel without showing their colors and giving her the customary preliminary notice of a desire to speak and visit her.

"Thirdly. That when the visit is made, the vessel is not then to be seized without a search, carefully made, so far as to render it reasonable to believe that she is engaged in 'carrying contraband of war to the insurgents and to their ports, or otherwise violating the blockade; and that if it shall appear that she is actually bound and passing from one friendly or so-called neutral port to another, and not bound or proceeding to or from a port in the possession of the insurgents, then she cannot lawfully be seized.

"And, finally, that official seals or locks or fastenings of foreign authorities are in no case, nor under any pretext, to be broken, or parcels covered by them read by any naval authorities of the United States; but all bags or other things carrying such parcels, and duly sealed or fastened by foreign authorities, will be, in the discretion of the United States officer to whom they may come, delivered to the consul, commanding naval officer, or legation of the foreign government, to be opened upon the understanding that whatever is contraband or important as evidence concerning the character of a captured vessel will be remitted to the prize court or to the Secretary of State at Washington, or such sealed bags or parcels may be at once forwarded to this Department, to the end that the proper authorities of the foreign government may receive the same without delay.

"The President desires especially that naval officers may be informed that the fact that a suspected vessel has been indicated to them as cruising in any limits which have been prescribed to them by the Navy Department, does not in any way authorize

Directions for

search by Ad

them to depart from the rules of visitation, search and capture prescribed by the law of nations."

These instructions were so far modified subsequently as to authorize forwarding all mail-bags to their proper destination at once. They are now embodied in the United States Navy Regulations.*

The following directions for conducting visitation and search miral Pareja, were given in the order of blockade of the Spanish Admiral Pareja in 1865, in the Pacific, and are more explicit even than the instructions above quoted:

1865.

"1. On deciding to board and examine a merchant vessel, you will hoist the national ensign and fire an unshotted gun, on which intimation the merchant vessel should heave to and await the boarding party with her colors hoisted. If she does not, you will manœuvre so as to compel her to do so.

"2. If the merchant vessel heaves to at once and shows her flag, you will keep at such distance from her as you may deem convenient, according to the state of the wind and sea, or other circumstances not possible to foresee, and keeping in view always the safety of the boat sent to board.

"3. As soon as the merchant vessel heaves to you will send a small boat with an officer, who, accompanied by only two or three men, will go on board and proceed to verify the nationality, the class and the cargo of the vessel, and whether engaged or not in illegal commerce; that is, carrying any contraband of For which purpose the officer will require the captain to exhibit his sea-letter or passport, crew-list and bill of health from port of departure, by means of which he can ascertain the nationality of the vessel and the lawfulness of her voyage.

war.

"If from this scrutiny it shall appear that the vessel visited is neutral, and is also bound to a neutral port, the examination is finished, and the officer is to leave the vessel at liberty, without inquiry into the nature of her cargo, endorsing her papers accordingly.

"If the vessel boarded should be bound to a port of the enemy, the officer, besides examining the papers already named, must demand of the captain those which prove the character of the cargo; and if it appears from these that there is no contraband on board, the examination is terminated and the vessel at

* Regulations, 1876, p. 135.

liberty, endorsed as already indicated. But if the papers show that there is contraband on board, you will take possession of the vessel, taking care, however, even in the latter case, that the hatches are not to be opened, nor closets nor chests, in order to see if there be other suspicious papers or merchandise.

"I must here repeat the caution given you previously, that the examination of a ship's papers is of the utmost importance, since they constitute the foundation on which depends the validity or invalidity of the capture.

"If in consequence of this examination the vessel becomes a prize, the officer will take possession of all her papers, giving to the captain a receipt therefor, and will cause him to make sail so as to approach the boarding vessel, which will then return to her station."

Existing treaties of the United States contain the following Sec. 4. Treaties directions in regard to exercising the right of search:

The treaty with Algiers, 1816, permits two persons only to go on board the neutral vessel to make the examination, and confines this to verification of the ship's papers showing nationality.*

The same stipulations are found in the treaties with Tripoli, 1805, and Tunis, 1824. Nothing is said in any of the above treaties as to voyage and cargo of the vessel that may be visited.

The treaty with Bolivia, 1858, requires the vessel of war making the visit to remain at a convenient distance, and to send a boat, with two or three men only, to make an examination of the papers concerning the ownership and cargo of the vessel. The neutral master is not to be required to go on board the examining vessel to exhibit his papers or for any other purpose. The same stipulations are contained in the treaties with the Dominican Republic, 1867, Hayti, 1864, and Italy, 1871.

of the United States.

ing vessel.

The treaty with the United States of Colombia, 1846, contains Distance to be the same agreement as to the number of persons to be allowed kept by boardon board, but requires the examining vessel to remain out of cannon-shot, unless in stress of weather. The same language is used in the treaties with Ecuador, 1839, Guatemala, 1849, Mexico, 1848, San Salvador, 1850, Spain, 1795, and Holland, 1782.

*U. S. Treaties, 1873, "Algiers," p. 20. See Tunis, Tripoli, Bolivia, Italy, &c.